Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

The Man Obama Has Become

I’ll give you three guesses who said this about President Bush:

We don’t expect the President to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two coequal branches of government – Congress and the Judiciary – to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much.

If you guessed Barack Obama, give yourself a cookie. But as Glenn Greenwald notes, and as I have been documenting for the past three years, this principled position evaporated the moment he inherited Bush’s power:

The last decade has spawned a massive expansion of the domestic Surveillance State. Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law.

Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the “state secrets” privilege); and/or (2)because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government — and, for that matter, everyone else in the country — lacks “standing” to challenge the legality of the spying (because nobody knows on whom we’re spying, nobody has the right to sue us for breaking the law).

A government that can spy on its own citizens without judicial review is a government which, by definition, operates outside of the rule of law; as Alexander Hamilton put it in Federalist 15:

It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.

And that is all the constitution is these days with regard to the power of the executive branch, a set of suggestions casually ignored. Bush and Obama together have, for all practical purposes, brought the rule of law to an end in the United States.

Comments

And today they killed a native-born American citizen in Yemen by dropping a Hellfire rocket on him, because he was thought to have induced people to do illegal things. He was not collateral damage; he was the target. It is the opinion of the Obama administration that killing a US citizen is permitted without any court finding if the administration thinks he is a bad enough guy. Even Texas provides a sham trial before executing people.

As we sit here at this moment,it is not clear as to whether the attack was carried out by the US or the Yemen government. Be that as it may, what would Mr. anandine propose that should be done when the alleged miscreant cannot be captured and extradited, either because the government of the country in which he is residing is unwilling or is unable to effect his arrest? According to the linked article, Awlaki had been implicated in a botched attempt by AQAP to bomb a US-bound plane in 2009 and had contacts with a US Army psychiatrist who killed 13 people at a US military base the same year.

Would Mr. amandine propose waiting until the scumbag is successful in one of his terrorist operations?

slc1, we must not murder people for crimes we think they might commit one day, or for making unfortunate associations with people who committed or might commit crimes. We need to be better than a jealous husband who beats his wife for looking at another man. Punishments must follow transgressions, not precede them. We must be governed by the rule of law, not the rule of statistics, not the rule of suspicion.

Awlaki had been implicated in a botched attempt by AQAP to bomb a US-bound plane in 2009 and had contacts with a US Army psychiatrist who killed 13 people at a US military base the same year.

I was thinking about this this morning after I heard the news. US intelligence may have iron clad evidence and all the allegations are true, but the man is still a US citizen and is thus, by the constitution, guaranteed due process and a trial. So, what is the government supposed to do in this case if this person really is actively engaging in hostilities against the US and in a country that has no interest is arresting him and bringing him back to the US? Obama no doubt did the “popular” thing, but what would be the correct thing? Could they give Awlaki a trial in absentia(assuming he doesn’t show up)? And then, if he is convicted and then sentenced, what? If he is sentenced to death for treason, is it really ok to take him out with a missile then?

slc1, we must not murder people for crimes we think they might commit one day,

We sought to kill Awlaki precisely because he was actively engaged in war with the U.S. He certainly wasn’t sought because of what crimes he might commit in the future but instead for the actions he’d taken in the past. The fact he continued to be engaged in destroying the U.S. increased the national interest in taking him out.

It’s a giant strawman to argue that only our criminal statues apply; the reality is there are convincing arguments to be made that al Qaeda’s actions are both criminal and applicable to the conduct of war. So make a nuanced argument the government’s delegated powers to use the military to protect national interests don’t apply in this specific case, only our criminal statutes; but avoiding the feds delegated military powers disqualifies your argument by forfeit.

Do you have a cite this both true and uncontroversial amongst the relevant constitutional experts?

I don’t have a cite and I’m not sure where I would find one. But, how could this not be true? The constitution guarantees rights of due process and a trial and it applies to US citizens, surely this is not controversial. And if that’s not true, does it not follow then that the President has the authority to legally order the murder of anyone for reasons that don’t have to be made public?

I’m not saying the guy wasn’t guilty as hell and that he needed to die to prevent more attacks against the US, I don’t really know. I’m just asking if what the US did was illegal. And if it isn’t what would the correct thing to do.

Anwar al-Awlaki wasn’t charged with a crime. Government officials often said he had committed crimes, but the evidence couldn’t really be shown for reasons of government secrecy (and you can then use dozens of Ed Brayton posts to criticize the “secrecy” rationale).

So, in terms of executing this guy for criminal activity, this action doesn’t pass legal muster. He was an American citizen, not charged with a crime, who was killed by the American government. And on its face, all the American public has to support that action where the words he said. So, he was an American citizen, killed by the American government, for the ideas he expressed. There may be indeed be strong evidence that he committed crimes that warrant the death penalty, but because the government decided we should not be shown that evidence, from a criminal standpoint, this was a lawless action.

Now, what about the perspective that he was, essentially, a soldier or commander of an enemy force fighting a war with the country. This could be much more of a legitimate reason, and it seems to be the path Andrew Sullivan takes. But this reasoning requires that the definition of the battlefield be the entire world, and the timeframe of the war may indeed be infinite. So, the government is then justified in killing anyone it deems an enemy anywhere in the world at any time.

Again, this mindset does not require the government to make its case against those it kills, since, obviously, you’re talking about a war, and you certainly don’t hold a mini trial before each soldier fires a gun at an opposing soldier. But the definition of war and enemy combatants gets stretched so far in this case that American citizens end up not being protected by the law any more. The words we say define us as enemies of the state and thus open to assassination by our own government.

This would be a much different discussion if the government had actually filed charges against Anwar al-Awlaki or showed the direct connections between him and the attacks on our country. It had many opportunities to do so, including when al-Awlaki’s father filed a lawsuit to prevent his son’s assassination. But it hid behind “government secrecy” and said it had to do nothing. And a court agreed, removing any protections U.S. citizens might expect to have against their own government.

Anwar al-Awlaki may very well have deserved to die and deserved to die in the way he did. But make no mistake — the process has very serious implications for what it means to be a U.S. citizen and what sort of government we now live under.

Obviously once he was elected they took him into the back room where they revealed that the governments around the world are filled with lizard people and if he doesn’t fall in line they will eradicate everything. His hands are tied.

When this same issue arose with regards to Bin Laden, I discussed the legality of it with a friend of mine who’s an expert on the rules of war. She’s a military historian who was formerly in New Zealand’s army, which is one of the militaries in the world most faithful to the strict rules of warfare. Here’s how it works out, based partly on my own research and on what she’s told me:

Under the current rules of war, a person qualifies as a combatant if they form part of a nation’s official military or an independent pseudo-military organization which wears some identifying marker which is recognizable at a distance (typically a uniform). Al Qaeda fits the bill as an “independent pseudo-military organization,” and they do have their own symbols, but the problem is that they never publicly display them.

If we treat this under the rules of war, then members of Al Qaeda who engage in military activity outside of uniform are violating the rules of war. However, this does not give their opponents license to violate those rules in turn. Nations are obligated to respect the rules, no matter how much their opponents may disrespect them. So, none of this behavior gives license to Guantanamo Bay and similar atrocities.

However, targeted killings of enemy combatants are allowed under the rules of war, even when they aren’t in uniform. A soldier is never off duty until they die, surrender, are too injured to continue fighting, or retire from military service. So, if al-Awlaki was a member of Al Qaeda, his targeted killing was legal under the laws of warfare. There are a few times where al-Awlaki has acted publicly as a member of Al Qaeda, such as in an appearance in one of Al Qaeda’s videos, so this would be sufficient to consider him an enemy combatant, even if he never wore a uniform.

And yes, it is possible to be an American citizen and also be an enemy combatant. I’m an American citizen myself, but I live in Canada and also have a Canadian citizenship, so I could theoretically join Canada’s military. If Canada then went to war with the US, my US citizenship wouldn’t mean a thing.

A problem with all this is that some of the criteria you lay out have not been adequately explained by the U.S. government. There is substantial doubt among experts whether al-Awlaki even had any operational role in al-Qaida. No evidence has been presented as to his guilt, and the U.S. government has consistently objected to presenting it under the cover of state secrets.

So, the situation might be more like, using your Canada-US war hypothetical, if a U.S. citizen cheering on the Canadian army were gunned down by U.S. soldiers. And if that were done in Britain, which has decided to stay mostly neutral, but friendlier to the U.S. for economic reason.

Again, U.S. claims that al-Awlaki was indeed a high-ranking member of that al-Qaida organization who engaged in planning and even implementation of attacks may very well be true. In my gut, I think they probably were true. But I still believe the government had an obligation to prove that to be true before killing a U.S. citizen far away from any battlefield.

The fact that the courts have also given carte blanche to the government to act this way makes me worry that the Constitution is nothing more than a quaint relic of another time. No president is likely to give up the powers claimed by these last two administrations, and Congress is too cowed or polarized to do anything about it. All we had were the courts to prevent governmental overreach, and so far, they have fallen in line with the administration.

Maybe at a basic level many people are comfortable with President Obama now wielding not just the power to spy on them at all times but also to kill them without due process by uttering the magic words, “He’s a terrorist!”, but we must consider whether we’ll be comfortable with that power in the hands of, say, President Rick Perry or President Sarah Palin.

@14 Kirk: Fair points, and in many cases I do agree that the US government has issued kill orders without adequate evidence. (For me, “adequate” would be either a public admission of affiliation with Al Qaeda or the results of a trial, potentially held in absentia.) The only reason I’m bringing this up in this particular case is because of the video al-Awlaki published through Al Qaeda, which I would consider adequate evidence of affiliation – he doesn’t need to hold an operational role to be considered a combatant. To modify your analogy, I would consider this to be like a person in Britain had posted a video to YouTube saying that he was declaring himself a free-shooter aligned with the Canadians, but he refused to wear a uniform, and he encouraged others to join his cause. In this case, I would consider it acceptable for the US to consider him a combatant.

But in general, I do agree that these kill orders are given out far too frequently for suspected members of Al Qaeda. I’m content with the standard that publicly affirming affiliation with Al Qaeda would make you a combatant, but aside from that, I’m not willing to simply accept the government’s word on the matter.